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Estlund (and Brennan) on inherently fair procedure

Procedures can be fair, but not due to tending to produce results that are fair. If two reasonable people are not agreed on who should get the last turkey sandwich, it would be fair to flip a coin to decide who gets the sandwich. But this would not be because there is some “fair owner” of the sandwich that coin-flipping tends to get right. Similarly, it seems that democratic procedure is an inherently fair way to decide issues of state governance.

Jason Brennan [AGAINST DEMOCRACY, ch. 1, pp. 10-14, ch. 5] denies that democracy is inherently fair (and, taking inherent fairness to entail non-instrumental value, denies that democratic procedure is non-instrumentally valuable). I’m not sure what he thinks of coin-flipping. Democracy, he thinks, is fair (or not) only insofar as it tends to produce substantively fair or otherwise relevantly good results. He finds democracy incompetent in this task, thinks incompetent government is unfair (because incompetent coercion is unfair) and thinks it likely enough that some version of “epistocracy” or rule by the competent (probably involving voting, but not universal suffrage and each vote counting the same) will work out better.

I think Brennan is wrong. It is almost as intuitive that democracy is inherently fair as it is that coin-flipping is inherently fair. He seems to think that there is no inherent fairness in any collective decision procedure if there is no non-instrumental value in any collective decision-making procedure. Though I agree that inherent fairness in procedure is always non-instrumentally valuable (and or perhaps because collectively obligatory or individually obligatory for relevantly-placed agents), I don’t think that the relevant sort of fairness in procedure is only instrumentally valuable. However, my main focus here is on inherent fairness in procedure (considered as a descriptive property), not the weighty, non-instrumental value (or obligation) of this. (In what follows, I’ll be concerned with value and normativity only insofar as it is relevant to the individuation of the descriptive property of a procedure being inherently fair.)

David Estlund [DEMOCRATIC AUTHORITY, ch. 4], in contrast to Brennan, argues that there are inherently fair collective decision-making procedures. But he does not think that democratic procedure is such a procedure. Inherent fairness in such procedures is properly defined in a narrow way, to include only “anonymity” or interchangeability/indifference between agents in the procedure. So appeal to inherent procedural fairness does not support the inherent fairness of democracy (however advisable democracy might be when all is said and done) – but does support the inherent fairness of making government decisions randomly via coin-flips or otherwise (however inadvisable making government decisions via coin-flip might be when all is said and done).

As I’m concerned with what inherent fairness in procedure is and because Estlund offers an account of this with considerable merit (whereas Brennan does not and often glides between inherent fairness and its non-instrumental value), I’ll sketch an account of my own largely through criticizing Estlund’s account. Then, with some results in hand, I’ll indicate how I might vindicate my above largely-intuitive criticism of Brennan.

Estlund seems to get to his conclusion that procedural fairness is “anonymity” via two premises. The first is that inherent procedural fairness is individuated in the following way: inherently fair procedure (in collective decision-making) functions to solve the problem of collectively coming to a decision acceptable to all (or to all reasonable participants) when access to generally-accepted standards for ranking the social options at stake is inadequate (so that no “outcomes-based” evaluation of decision and hence decision-procedure is possible). The second premise is a negative characterization of inherent procedural fairness to the effect that it is individuated (and made valuable) by reference to non-procedure-independent standards, not procedure-independent ones (as with fair-outcome-based evaluation of procedure). But the only kind of procedure that both does the work specified in the first premise and fits the negative characterization of the second is a procedural fairness that is constituted by anonymity (or indifference between or interchangeability of participants, including their particular preferences or interests). Think coin-flips or other randomization (or Rawls’ “veil of ignorance” way of generating norms of governance).

I’ll skip Estlund’s argument that anonymity (but not “aggregativity” such as characterizes democratic procedure or voting) fits both of these bills. My gripe is with his second premise. His negative characterization of procedural fairness is off-base (and ends up being too broad). The essential contrast to procedural fairness is procedures being fair due to tending to produce fair decisions or otherwise relevantly good decisions (or outcomes). The latter sort of standard for evaluating procedures is procedure-independent. Regardless of what procedure might produce decision, we have a ranking of options in hand, achieved via some standard. But I do not see any rationale for contrasting the fairness of fair procedure with anything other than the fairness of tending to produce better (or the best) decision (or outcome). This narrower contrast object fits nicely with the story of Estlund’s first premise. It is precisely when the standards that would make for outcome-based procedural fairness are inaccessible to reasonable agreement that we need something to do the work of inherently fair procedure.

And here’s another strike against Estlund’s non-procedure-independent characterization of the standards that determine fair procedure. It seems that procedural fairness is itself individuated by reference to procedure-independent standards. When the standards for coming to agreement regarding the evaluation of a given range of social options are inaccessible, the relevant (second-order) decision is that between types of decision-generating procedures (with respect to the first-order options). And, most plausibly, candidate decision-generating procedures are ranked relative to the costs of failing to any come to any generally-acceptable first-order decision. And that is a procedure-independent standard. So the procedure-independent (e.g., outcome-based) vs. non-procedure-independent distinction in standards for evaluating procedure does not succeed in marking out the distinction that we want it to. Fair procedure need not be individuated by reference to non-procedure-independent standards.

Perhaps there is a nice (and even required-for-some-cases) negative characterization of the relevant standards that is better. But inherently fair procedure thus characterized might not, when doing the decision-generation-mechanism-providing work of the first premise, have to be anonymous. And, more to the point, it does not seem that a procedure that both does the required work and meets the narrower, more intuitive negative characterization for evaluation (the contrast with outcome-based evaluation) will have to be anonymous. I suggest that we go with this characterization. But it is only Estlund’s broader negative characterization that pushes us in the direction of taking procedural fairness to by anonymity.

So we should feel free to take seriously intuitions that democratic procedure is inherently fair. More generally, we are free to suppose that taking into account specific agents and their preferences – say by aggregating their preferences in some proper way to produce rankings for social decision, as happens in majority-rule voting – might constitute procedural fairness in some or many cases. Of course, vindicating these intuitions or positions would require a fuller working out of an Estlund-like story about the work of procedural fairness without the sort of restriction he places on how procedural fairness could get its value.

The story here would not be as simple as Estlund’s. For instead of one feature constituting inherent fairness in procedure there are many. And they would seem to fit together like this: whichever of the two (anonymity, aggregativity) or whatever combination of the two is needed to do the relevant work in a type of context would be what constitute procedural fairness in that context.

Bringing the discussion back to Brennan: if the sort of account that I am suggesting is filled out, it might well support the intuitive idea that majority-rule democratic procedures are inherently procedurally fair. If we also grant, as Brennan does, that inherent fairness entails non-instrumental value, then his “instrumentalist” criticism of democracy loses much of its force. We might tolerate a good deal of incompetence in coming to the best decisions if democratic procedure is inherently fair and non-instrumentally valuable.

(The task of explaining why inherent procedural fairness is non-instrumentally valuable is another task. It seems plausible that, in large part for reasons grounded in the job for them that Estlund specifies, we do uniquely best when we value these procedures non-instrumentally. And being non-instrumentally valuable might come to something like this.)

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36 thoughts on “Estlund (and Brennan) on inherently fair procedure”

There’s a basic problem of scope here, driven by Brennan’s stipulations early on in the book. Your post is about “democratic procedures,” but it’s unclear to me what counts as a “democratic procedure.” It sounds as though a “democratic procedure” is a procedure that governs democratic elections or perhaps deliberations in a democratic institution, but this seems extremely narrow.

On pp. 9-10 of Against Democracy, Brennan says that he confines his “use of the term political liberties in this book to include only the right to vote, and the right to run for and hold offices and positions of political power.” The essential point is that political power gives power over others. Voting supposedly gives us power over others, but the exercise of free speech only gives us power over ourselves. But suppose that I can more efficaciously affect policy by speaking than by voting, or by spending money than by voting. If so, why single out voting as the activity that gives us power over others and ignore the power conferred by speaking or spending?

Trivial but true example: I contributed several hundred dollars to Mikie Sherrill’s congressional campaign, and helped campaign for her, but never voted for her. As it happens, she won the election, and once in Congress, she will have power over people through legislation. Arguably, I made more of a causal contribution to her holding office than someone who did nothing but cast a single vote for her. Or if I didn’t, imagine someone who donated the maximum allowable amount of money to her campaign, and canvassed tirelessly for her, but happened not to vote for her. If X’s causal contribution to someone’s office-holding exceeds Y’s in a democratic election, it seems arbitrary to single out Y’s contribution as the object of analysis while ignoring X’s.

Imagine that Sheldon Adelson happened not to vote for Donald Trump. Would it really make sense to say he made no causal contribution to Trump’s campaign describable as an exercise of political liberty?

Suppose we discovered that the Moratorium movement had a causal influence on the course of the Vietnam War. On Brennan’s view, the movement was merely a matter of the demonstrators’ exercising power over themselves; by contrast, those who voted in the 1972 presidential election were exercising power over others. Now take an individual person, Smith, who both protested against the war and indirectly voted against it (voted for McGovern). The protest actually influenced the course of the war; the vote was wasted on the loser in a landslide election. But on Brennan’s view, whereas the protest is politically irrelevant, the vote is all-important. That strikes me as a reductio.

Take a totally different sort of example. Both search and seizure confer power over people, whether in criminal or civil contexts. And both are governed by procedures. Do any of the relevant procedures count as democratic? On Brennan’s account, none of them do. In other words, there’s nothing democratic about the procedural features of the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, about the procedural requirements of search or arrest warrants (e.g., particularity, probable cause), about the exclusionary rule, Miranda warnings, judicial review, the right to counsel, or the like.

Omitted from his account of democratic politics, then, is the part of democratic politics that takes place in the judicial arena: criminal defense, civil litigation, class action suits, consent decrees, etc. On this view, the activities of the ACLU, Institute for Justice, etc. are either irrelevant to democratic politics, or operate at its margins. Same with remedies for injustice like Brown vs. Board of Education, Miranda vs. Arizona, or Mt. Laurel vs. NAACP.

My worry is that Brennan defines democratic politics narrowly because it’s convenient for him to do so, not because democratic politics is as narrowly conceived a phenomenon as he makes it out to be. There also seems a bait and switch involved. He defines democratic politics very narrowly, but when he argues that “political participation corrupts,” or that “politics doesn’t empower” us, or that “politics is not a poem,” he doesn’t adhere to the narrow conception, but broadens it in an ad hoc way. At a minimum, he fails to make clear that such claims exclude things like judicial politics.

To come back to the topic of your post: it’s unclear what procedures we’re talking about, or are limited to talking about. Are we talking about specific democratic procedures, or are we treating democratic electoral politics as a kind of meta-procedure of its own?

Though I use some loose language in my post for sure, my focus is simply on majority-rule voting procedure as a way of making collective decisions. And then on the relevant bits of democratic procedure that are instances or extensions of this. The story gets complicated in modern representative democracy because there is lots of authorization of and delegation to other agents that get us to where the rubber meets the road (the enforcement of the law). But the rubber does meet the road and it is voting that initiates the relevant causal chain. For my purposes here, I’m happy to leave the intervening bits as something of a black box. (In fact, for my main purpose here, we don’t have to talk about the particular collective decision-making procedure that is modern representative democracy at all. We could be stuck on an island trying to get rescued and voting on the best strategy.)

Lots of actions other than voting effect who wins an election and how the downstream authorization and delegation goes (and hence what the laws are and how they would be enforced). And many of these things seem to be part of “the democratic process” broadly construed (and should go certain ways and not other ways). If these processes are all fucked up it does not mean that deciding between policies and politicians by majority-rule voting is responsible for the mess.

My criticism was aimed at Brennan and maybe Estlund, not your post. It just seems to me that his/their account of democratic politics is hugely oversimplified (I haven’t finished Brennan’s AD, and haven’t read Estlund). Not clear to me, either, that voting initiates the relevant causal chain, or even what “the relevant causal chain” is.

I think the problem I mentioned here becomes more of one toward the end of Against Democracy. By p. 215, the contrast between “democracy” and “epistocracy” starts to get blurred. He admits that most democrats regard judicial review as “compatible” with democracy (p. 218), but that’s an understatement. Whereas most democrats regard judicial review as part of democracy, he regards it as a “borderline case,” which strikes me as a very eccentric, outlying view (p. 218). Anyway, all that suggests that he’s operating with a very narrow conception of “democracy,” but in chapter 9, he tells us that “politics makes us view each other as enemies,” then that “democracy” does (p. 242), so that he’s using “democracy” and “politics” in a broader sense than he does elsewhere in the book.

I find it exasperating that at the end of the day, the de facto thesis of the book is really just: “Voters are ignorant, so let’s consider the possibility of restricting voting a little bit, maybe, starting out in New Hampshire, fantasizing a fix to the problem of voter ignorance among black voters so as not to come across as racists.” But if you look at the way it’s being sold, you’d get the impression that it was saying something a lot more grand and cosmic than that. Almost no one today disputes the need for judicial review as a check on universal suffrage, and few would regard adoption of such a view as a “borderline” view between democracy and something else. What most people would dispute is the justifiability of restrictions on suffrage. Nothing that Brennan says by the end of Against Democracy convinces me of anything beyond his somewhat truistic claim that democracy is at times ugly and ignorant.

Having had a day to think this over, it occurs to me that we may be talking at cross-purposes above because we’re focusing on, and critical of, very different aspects of Brennan’s account. My objection is that he’s defending a very narrow thesis, but dressing it up in very sweeping rhetoric. The thesis is really a critique of the exaggerated value attributed (by democratic theorists) to the exercise of political liberty, mostly on the voting side of the equation, in large-scale elections in “Western” democratic countries, taking the U.S. as a paradigm, and ignoring complications like whether Israel, India, South Korea, or Japan qualify as Western democracies. But the thesis is dressed in tendentious, misleading rhetoric to the effect that “politics disempowers us all,” a claim nowhere borne out by the argument of the book.

What I find not just objectionable but offensive about Brennan’s writing is the rhetorically manipulative, PR-driven quality it has. That democracy may turn out not to be inherently fair is, to me, sort of beside the point. Maybe it isn’t inherently fair. What offends me is the idea that someone titles his book Against Democracy, makes all these provocative-sounding rhetorical noises in the book, but then makes sure to qualify his claims by saying, “Oh, by the way, my thesis is really quite narrow and moderate.” Right. So why the fuss?

I forget where it was, but somewhere he likens his thesis about democracy to one about Iron Maiden: Iron Maiden has made a lot of good music, he tells us, but has also released a lot of duds. Mutatis mutandis, the same might be said about democracy. Great analogy, but does it follow that if he wrote a book about Iron Maiden, he’d call it Against Iron Maiden, and include a chapter on how “Iron Maiden Disempowers Us”? If the question sounds ludicrous, maybe that’s because the situation is.

Given the way Brennan sets up the contrast between proceduralism and instrumentalism, and not having read Estlund, I’m inclined to give him (Brennan) the claim that proceduralism is false or implausible, and instrumentalism is the way to go, at least on a non-consequentialist conception of instrumentalism. Put this way, my inclination would be to grant the inference to instrumentalism, and ask whether he really takes seriously his official line that instrumentalism is supposed to be non-consequentialist. What non-consequentialist values does he really take on board and consider?

I take that to be the mirror image of your strategy, which is to contest the inference to instrumentalism. But if we rely on Estlund to contest that inference, a lot turns on a phrase in Estlund’s account that I find obscure, at least as it appears above:

Estlund seems to get to his conclusion that procedural fairness is “anonymity” via two premises. The first is that inherent procedural fairness is individuated in the following way: inherently fair procedure (in collective decision-making) functions to solve the problem of collectively coming to a decision acceptable to all (or to all reasonable participants) when access to generally-accepted standards for ranking the social options at stake is inadequate (so that no “outcomes-based” evaluation of decision and hence decision-procedure is possible).

First, anonymity seems to me a very thin conception of proceduralism. I guess it’s meant to capture the intuition behind the secret ballot, but how secret is the secret ballot in a world of exit polling? If Estlund has some Rawlsian veil of ignorance-type thing in mind, that seems too idealized to count as a “procedure” in any but the ideal-theoretical sense, which isn’t what Brennan is talking about. That said, it could be that Brennan is misrepresenting what Estlund was talking about. I’ll have to read Estlund to get straight on that. And what better way to spend my weekend?

Second, I don’t quite understand the phrase “when access to generally-accepted standards for ranking the social options at stake is inadequate.” I guess I need an example or further elaboration here. When is access inadequate? And what exactly is access to a standard? In one sense, “access” has an epistemic meaning, and in another I suppose a political one; in the first sense, it means that information is beyond the knower’s ken, and in the second I suppose that consensus is impossible. But ultimately I’m just unclear what the phrase means, and a lot seems to turn on it.

Yes, we are focusing on different things. I’m sympathetic to your criticism of Brennan, but I’m more interested in how procedures (and in particular collective decision-making procedures) might be inherently fair (Estlund’s topic in ch. 4 of his book). This opens up the possibility – to me, pretty intuitive – that equal-vote, majority-rule voting to decide who more directly rules is inherently fair (though, for sure, a lot is needed to get to a theoretical vindication of this intuition). Brennan denies that this sort of procedure is inherently fair and this denial, conjoined with the idea that the only plausible way for such a procedure to be non-instrumentally valuable is for it to be inherently fair, yields his pure instrumentalism about the value of the procedure (and of “democracy” more generally – there is your equivocation!). If Brennan is wrong here, then – the non-instrumental value of inherent fairness being considerable, analogous to the priority obligations take over other considerations – the shortcomings of such an equal-vote, majority-rule procedure (and the procedure-attendant woes in individuals and society) would have a tough time outweighing the fairness of the procedure.

Yes, best to go read some or all of ch. 4 in Estlund’s book. I find it pretty tough sledding, but worthwhile. My formulations might not be entirely accurate. To address your two points briefly: (1) on Estlund’s view true inherent procedural fairness (thought of as “anonymity” or utter indifference in the process to the particular identities of agents or their interests) – seen in its pure form in coin-flipping or other randomization and seen in only an impure form in voting (since voting, in addition to being anonymous with respect to race and gender and any number of other features of agents, still aggregates the social-outcome preference-rankings of individuals into one collective ranking) – is only valuable in certain contexts and often not very valuable at all (Estlund is very much trying to deflate the scope and importance of procedural fairness, at least in the realm of collective decision-making) (2) imagine we need to get to the other side of the island in order to be rescued, can either go over land or around on the beach, have no relevant knowledge or experts in our group to rely on to tell us which of the two options is best, but have a hope of making it only if we cooperate and do it all together; in which case, there are no standards for ranking our two collective-decision options so we might instead flip a coin or vote to determine which option to take.

I guess I’m more with Brennan on this particular issue. The idea of an “inherently fair procedure which is fair purely in virtue of its formal features, abstracted entirely from any instrumental relation to outcomes” strikes me as a quasi-Kantian will o’the wisp. I still haven’t read Estlund, so maybe my views will change once I do, but on the whole, I think Brennan has this part of the conceptual terrain covered, and little mileage will be gotten by trying to defend democracy on proceduralist (or at least purely proceduralist) grounds. The problem as I see it is not that Brennan undersells the virtues of proceduralism, but that he oversells the virtues of his particular form of instrumentalism. Once you distinguish instrumentalism from consequentialism, I don’t think Brennan’s rejection of proceduralism is that problematic. For me the question is whether in practice his instrumentalism just collapses into a kind of consequentialism.

Take a case that seems intuitively like the application of a pure procedure: equal division or distribution of a good that has to be distributed. I think it’s obvious that equal division/distribution will not be neutral or fair in any case where someone is making a claim of prior ownership to the good. If the issue is how to distribute a batch of cookies, and I claim that the cookies are all mine, then an equal division is not clearly fair; it depends on whether my prior claim to ownership of the cookies is correct or incorrect.

Suppose that no one owns the cookies, and no one claims to. In that case, equal division is only fair if it abstracts from considerations like merit or need. But that strikes me as a very odd sort of case. Offhand, I can’t think of any unowned good of any importance where division of that good is unproblematically divided into equal parts because no one cares at all whether the division-procedure is sensitive to either merit or need. (Think of initial appropriation of land.)

Maybe there is some case somewhere in which equal division is a fair procedure because there are no claims to prior ownership and no considerations of merit or need to deal with, but these cases seem so few and far between that they seem irrelevant to real-world politics. Where in the political world do you encounter a good that has to be divided, but to which no one is making a prior claim of ownership, and where both merit and need are irrelevant? If a good of that description existed, it would be so inconsequential as to be irrelevant to anything important. This seems to entail that if pure procedural fairness matters at all, it only matters at the margins of politics, not at or near the center. I don’t know whether Brennan wants to deny even that, but whether he does or doesn’t seems like haggling over something relatively unimportant.

If we’re deciding who rules, I think it’s obvious that we need procedures that incentivize voting for the virtuous and competent (or both at once, if competence is a virtue). Pure proceduralism doesn’t fit that bill at all. We don’t, after all, literally have equality in voting. Kids under the age of 18 can’t vote, and neither can felons. The rationale for those exclusions is that the immature shouldn’t vote, and neither should the politically undeserving. That seems intuitively right to me. It seems absurd to grant the franchise to ten year olds. And even those in favor of felon enfranchisement tend to make exceptions for certain classes of felon, like murderers. Both exclusions seem more intuitively plausible to me than the claim that we should have literal equality in voting. In other words, certain exceptions to equality are at least as intuitive as equality.

Personally, I don’t think violent criminals should be allowed to vote even after their prison terms are up. Certainly armed robbers should not be allowed to vote: you forfeit your right to have a say in the distribution of goods when you egregiously violate that very right. And if we’re going to chip away at mass incarceration, as we should, it’s not unreasonable to take the vote away from those criminals who are criminals but who for whatever reason are not going to be imprisoned. I don’t mean drug offenders or illegal immigrants; I mean common law felons. It’s not obvious to me that rapists should vote. It’s not even obvious to me that statutory rapists should vote.

All this to say that I don’t share the intuition that (taken literally) equal vote majority rule is inherently fair. But once you introduce the exceptions to equality in electoral rights, it seems to me that you’re in some sense operating on Brennan’s turf. The exceptions to literally equal voting are there to probabilize certain outcomes, not because, say, exclusion of the immature by means of an age cut off is “formally” or “inherently” fair.

And in the U.S. at least, we don’t have pure majoritarianism, either. We have an Electoral College, among other things. For whatever it’s worth, we also have gerrymandering, which flouts any pure conception of proceduralism. I don’t mean to be defending gerrymandering, but my point is, there is no “inherently fair” way of drawing electoral districts that abstracts entirely from things like geography and demographics. It would, for instance, make no practical sense to re-district the State of New Jersey by deciding that 20 was an “inherently fair” number of districts to have, then dividing New Jersey into 20 districts, consisting of 20 squares of exactly equal area. That said, I don’t know much about the details of gerrymandering and re-districting, and it’d be interesting to look into it. (One problem I have with the whole discussion of “proceduralism” is how abstract it is, and how distant from a discussion of actual procedures.)

On point (2) in your second paragraph, I now see what you mean by “inaccessibility,” but find it very hard to see how the island-rescue example is analogous to real-world politics. In the example, we have “no relevant knowledge or experts” to tell us which of the two options is better, but how does that apply to real-world politics, where we do?

I’m just asking semi-rhetorical questions at this point, but if Estlund is trying to deflate proceduralism, why is Brennan taking Estlund as the foil by which to reject proceduralism? The more obvious procedure (so to speak) would be to attack actual, wholehearted defenders of proceduralism, unless those defenses are so implausible that you might as well go after the half-hearted Estlund-type defense. I see that Estlund is discussed on pp. 11-17 (which I’ve read), and pp. 222-224 (which I haven’t). On pp. 11-17, Brennan says he’s rejecting pure proceduralism. Estlund’s view is a mixed or partial form of proceduralism. I take it that Brennan is rejecting both the pure and the mixed forms, but rejects the pure form early in the book, and (I guess) discusses the mixed form later. The passage Brennan cites from Gonzalez-Ricoy does strike me as pretty implausible (Against Democracy, p. 12).

Estlund’s view (as described by Brennan) seems to be that proceduralism rules out a few forms of government (like monarchy and theocracy), but is relatively indeterminate beyond ruling some regimes out. Again, though I haven’t read Estlund, I’m inclined to give Brennan what he wants here: I would rule (absolute) monarchy and theocracy out, too, but not on procedural grounds. And to be honest, I don’t know that I would rule constitutional monarchy out at all.

Here – for the benefit of anyone else reading – is what I sent you earlier via email, Irfan (though it is cleaned up a bit – so this is the better version). This is my best effort yet to evaluate Estlund’s ideas on inherently fair procedure (and to come up with my own characterization of this). I’m pretty sure I’m on the right track. In the sense I specify here, there is inherently fair procedure but it is not precisely as Estlund says it is. This addresses your first contention above. To somewhat address your other concerns: nothing that I say here rules out (a) a procedure being inherently fair only in certain circumstances or (b) inherent fairness not always being the most important thing (even if the governing concern is overall fairness). Anyhow, here is how I think non-will-‘o-the-wisp procedural fairness should not (and should) go.

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The value of [a fair] procedure, then, need not be a function of the procedure-independent value of the options (in contrast with the procedure that is good due to tending to produce good decisions). It [might be] a function, in part, of the nature of the decision-procedure. Some decision-procedures – in particular, in at least some cases, ones that use randomization to directly select among options – realize or tend to produce states of affairs relevant to acceptability-to-all. What are these states of affairs? It is hard to give a detailed answer without saying just what acceptability-to-all comes to. It seems important that randomization assures participants that the option selected will not be selected on behalf of or for the sake of some individual or faction in the group (as opposed to on behalf of or for the sake of everyone). This would reduce resentment and conflict and not undermine the solidarity of the group.

So procedures that are acceptable-to-all have this value-status partly as a function of the nature of the procedure (in this sense, the value of the procedure is procedure-dependent). However, this value-status also depends on the relationship of the procedure to things *that are valuable independently of the procedure* (e.g., on my provisional telling, trust that personal or factional agendas are not in play in the decision procedure). At the relevant level of abstraction, this is precisely how procedures that are good due to tending to produce decisions that are good, are made good. It is due to things that are good independently of the procedure being appropriately related to them.

So what is formally distinctive about the value of such [inherently fair] decision-generating procedures is that *the inherent features of the procedure are essential and highly salient elements in explaining why and how they themselves are valuable*. This is not the case with decision-making procedures that are valuable due to tending to produce good decisions. [In such cases, the nature of the procedure could vary substantially and still produce good decisions or outcomes; the nature of the procedure is not tightly tied to the realization or production of relevant outcomes. And the salient explainer is simply that the good decisions or outcomes tend to be produced.] It is this positive feature that is important. So we do better with the narrow and positive characterization of the value (viz., acceptability) of inherently fair procedure as *procedure-determined*. And we might positively characterize the value (viz., on the merits of the options) of good procedures that are good due to tending to produce good decisions as *good-decision-determined*.

According the Estlund, proper aggregation of individual preferences in collective decision-procedure involves *procedure independent standards*. Hence, he claims, such features do not fit the bill for inherent procedural fairness. But this is wrong. What is required for inherent procedural fairness is not procedure-independent standards (or valuable states of affairs). My suggested value of generating general trust that the decision will not reflect personal or factional agendas (something promoted by the anonymity of random procedures, but perhaps by other features as well) *is procedure-independent*! What is necessary is not this feature but rather that the procedure, in virtue of its inherent features, generates the relevant sort of trust (in my provisional, partial story about what acceptability looks like and how we might get it). More to the point: that the implied standards for good aggregation (say, in voting) are independent of the aggregation procedure is no (fatal) strike against it. The relevant (fatal) strike against aggregation would be the nature of an aggregative procedure (as against something else, something identical or analogous to its having power to generate good decision) not having any essential and particularly salient role in explaining the value (acceptability) of the method of aggregation itself. But I don’t think Estlund offers any argument that aggregativity is ruled out (as constitutive of inherent procedural fairness) on this sort of ground.

I conclude that Estlund’s arguments against (relevant sorts of) aggregativity in procedure constituting (inherent) fairness in procedure are fundamentally flawed, resulting from a flawed understanding of procedure-independent evaluation. And so the argument that (inherent) procedural fairness is anonymity – and much of the case for such fairness not being as important as we might think – fails. And the intuitive “fair proceduralist” defense of voting to make collective decisions (and of democracy) looks much more promising. [Even as Estlund’s explanatory framework of acceptability-to-all, the distinctive “job” of procedural fairness and the distinction between anonymizing and preference-aggregating features of putatively inherently fair decision-procedure has, I think, considerable merit.]

[This is meant as an addendum to my 10:20 am comment, not a response to Michael’s 11:06 am comment.]

Two more counter-examples to literal equality in voting.

(1) Should severely mentally ill or cognitively impaired people vote? As an ethical matter, I think they should non-coercively be dissuaded from voting in cases where they make the attempt. A person in the throes of Alzheimer’s or Huntington’s disease is not competent to vote. Neither is someone suffering a florid psychotic episode, or someone currently intoxicated by an intoxicant, or someone of very low IQ. Literal disenfranchisement of the cognitively impaired, mentally ill, or otherwise incompetent strikes me as a very bad idea, but that’s because the categories in question are too coarse-grained and law is too blunt to target the right cases and leave the wrong ones alone. But I think cases like this support the claim that one-person, one-vote is not inherently fair. Equality in voting operates against a background context of substantive assumptions that entail that incompetent people shouldn’t vote, and could justifiably be disenfranchised if there weren’t equal and opposite dangers involved in doing so.

(2) Should illiterate and politically immature populations be granted the vote? I don’t think it’s obvious either way. Sojourner Truth was illiterate, but arguably competent to vote. Illiteracy doesn’t necessarily entail political incompetence. But an illiterate person can’t read the ballot, either. Where you have mass illiteracy, you need the functional equivalent of “guardians” whose job it is to “help” the illiterate voter read the ballot and vote–which includes explaining the significance of the various options on the ballot to each would-be voter. This is so inherently paternalistic that it seems to render voting close to pointless. In practice, you’re just busing thousands of people to a voting site, instructing them in “how” to vote, and then “helping” them vote, where “helping” them starts shading into voting for them.

I don’t think it’s wrong to conclude that universal enfranchisement is more trouble than it’s worth in cases like this. A population can be too politically immature to get value out of enfranchisement. At the very least, I’d say that it’s an empirical issue that would demand close study. It can’t be decided from an armchair, or by declaring non-enfranchisement “inherently unfair.” One problem I have with this whole literature is that it claims to be discussing “democracy,” but then restricts attention to a small subset of democracies, treating the rest of the political world as non-existent. But a comparative perspective might be illuminating.

I agree with all (or at least most) of that. But consider this claim: in collective decision-making, when settling on an acceptable option is more important than choosing the best option on the merits (Estlund’s sort of circumstance for procedural fairness), equal voting of all *qualified* members of the group is inherently fair (though not necessarily the best inherently fair option). Translate this to democracy and you get inherent procedural fairness weighing in favor of democracy (and the inherently fair procedures having substantial valence). And democracy might come out the best of the inherently fair procedures (which does not make it the most fair procedure, since prior norms of substantive fairness need to be taken into account as well).

However… If ‘qualified’ means ‘competent in or particularly good at ranking collective/social options on their merits’ then it looks like a voting version of epistocracy (that is merely formally egalitarian) is the result. If ‘qualified’ includes having a kind of competence that is a bit different from this, but that itself might include competence in ranking social/collective options – and that might also include being relevantly affected by the collective decisions – then we get something that is not merely formally egalitarian. In this sort of case, we get things like the “anonymity” and “aggregativity” of the voting procedure more plausibly “doing the work of procedural fairness” (and not, or not primarily, doing the work of producing good decisions). Though how ‘qualified’ is filled out produces something of a sliding scale of sensitivity to acceptability (in decision or outcome) as against sensitivity to quality (in decision or outcome), there is perhaps something of a hard stop in that, if acceptability is most salient, then it is primarily the work of settling on decisions acceptable to all that must be done by the procedure (and ‘qualified’ can only be filled out in certain ways, given this).

On your first paragraph: if that’s what Estlund says, then Brennan might say that choosing the best option on its merits is always more important than settling on an acceptable option. But that doesn’t ring true, and I find the distinction between “choosing on the merits” and “settling on the acceptable” a little fishy, so I need to read Estlund before I say much more. Settling on an acceptable option is, after all, one form of choosing options on their merits, so while I see what the contrast is supposed to mark, I’m suspicious of it.

I guess it’s open to Brennan to say that even if we accept the distinction between choosing on the merits vs. settling on the acceptable, and agree that we sometimes have to prioritize setting on the acceptable over choosing the meritorious, that’s the rare case that proves the rule: generally, we ought to choose on the merits. Choosing the merely acceptable is too rare a case to work as a general defense of democracy over epistocracy.

I have to think about the stuff in your second paragraph. Don’t have a reaction off the top of my head.

I just finished chapter 5 of Against Democracy, and laughed out loud when I read this passage. He’s making the case against Christiano that there is nothing morally wrong with thinking that your judgment is superior to others’:

As an illustration of this, my surgeon brother-in-law, David correctly believes that he has superior medical judgment to most people. It is not morally wrong for him to have this belief. But that does not mean he should walk around Target, telling everyone he meets that he has better medical judgment than they do. This would express arrogance or contempt. (p. 122).

LOL. I agree. What he should do is go on BHL, and write a guest post about it. That would express both arrogance and contempt while perfectly fitting the discursive milieu.

No need to respond to the preceding gratuitously disrespectful but utterly irresistible comment.

I think what you need to get acceptability standards going is simply lack of (reasonable?) agreement about best options (plus relevant background conditions). This is consistent with the relevant individuals or factions having lots and lots of competence about ranking relevant options. Typically, experts don’t agree on lots of important stuff! In such a situation, even if not everyone is particularly happy with them, you will get excellent collective decisions (with less expertise, maybe just good not excellent; still less expertise, okay decisions; etc.). When there is enough ignorance, irrationality etc. (with respect to making good collective decisions) acceptability becomes less important and quality of decision more important. And maybe one important question is when acceptability is no longer very important at all because the quality of the resulting decision is so likely to be so bad. Or maybe – instead – when the decisions that tend to be made are bad enough, they are no longer acceptable to all anyway. If so then you are right that acceptability, properly construed, still has a connection to quality.

1. Take a case of decision-making that has to be collectively-engaged in. It can’t feasibly or for normative reasons shouldn’t be privatized.
2. Make it a case of sufficient reasonable disagreement that, if you’re sensitive to the reasons behind the disagreement, you can’t produce an obvious ordering of the available options.
3. Restrict the decision to those qualified or competent to make it.
4. In this case, certain paradigmatically democratic procedures (anonymity, aggregation, etc.) will be inherently fair ones.

I’m not sure whether (4) entails that whatever comes out of output side of the application of the procedures is fair–or fair or not, is just the best of the available options.

That all seems intuitively right, but characterized this way, (3) points in the direction of epistocracy, and (4) in the direction of democracy. If you lean hard enough on (3), you might be apt to say, “Well, this is just epistocracy with procedures thrown in. I mean, who ever thought that epistocracy was incompatible with procedures?” But if you focus on (4), you’d say, “Yes, but epistocracy denies that democratic procedures are inherently fair, but (4) is saying that they are.”

Here’s a thought about the bigger picture: suppose you re-evaluate the whole thing in terms of (1) and (2). What if the solution to the problem described in (2) is to insist on privatization, precisely to avoid cases of normative indeterminacy, conflict, and disagreement? So you go back and say, “You know, politics doesn’t empower us. So why collectivize so many decisions? Maybe we should privatize more of them. Indeed, some of the experts referred to in (3) suggest that this would be a good idea.” And so, lots of collective decision-making are privatized.

In that case, the scope of (4) would be greatly decreased, maybe even to the vanishing point. There would be so few contexts for the application of “inherently democratic procedures,” that they wouldn’t be much of a threat to epistocracy. I don’t know if that’s what Brennan really wants to say, but it’s certainly a line of thought open to someone who’s sympathetic to a Huemer-type anarchism, as he is. Obviously, on Huemer’s own view, there would be no contexts for the application of inherently democratic procedures.

The cash value of this sort of view is say the following: Yes, if you collectivize decision-making, you will be led to the kinds of problems that require you to rely on “inherently democratic procedures” as the solution. But both the problem and the solution are an artifact of questionable assumptions. If you adopt even quasi-Huemerian assumptions–Huemer Lite–the problem either evaporates or starts to.

I’m not sympathetic to Huemer’s anarchism, but Brennan is. If you look at both Huemer’s and Brennan’s books, you could see them as engaging in the same project, but operating at opposite ends of that project, dividing up the labor between them. Huemer chips away at the normative assumptions behind the state, and Brennan chips away at democratic politics. Since they’re both talking primarily about politics in democratic states, the two projects, put together, work perfectly as a kind of anarchist chisel to chisel away at the state.

That’s helpful. I like the way you set this up. Only thing I would add is that something similar applies to private collectively-made decisions. I think this is a real thing. Political libertarians, at least of the Huemerian or Randian types, tend to be individualists who would balk at having to make collective decisions with incompetent people or even people that they just disagree with.

Thanks, and I agree about private collectively-made decisions. As an example: there is no fundamental procedural difference between decision-making within my HOA, and decision-making at the Readington Town Committee. In both cases, there are candidates up for election, taken to represent the electors; “everyone” has a single, anonymous vote*; officeholders are lobbied by the more active or zealous constituents; there are informational and deliberative meetings where past or prospective policies are discussed; and the output of the whole process is some equivalent of policy or legislation which is up for enforcement and/or adjudication. In general, private decision-making is modeled on democratic decision-making. Though Huemer defends HOAs in Problem of Political Authority, it’s possible that the problem of ignorance applies as acutely to HOAs as it does to democratic assemblies.

*Granted, there’s a difference in defining what counts as “someone” in the relevant “everyone.” For the HOA, it’s the homeowner, and for the Committee, it’s the citizen-resident.

It’s pretty implausible to think that his references to “democracy” in this interview are restricted narrowly to the exercise of political liberty as defined in the book. And your guess is as good as mine on the distinction between “technocracy” and “epistocracy.” I also think it’s obvious that given several chances to explain what he means by “political competence,” he evades the question. Apart from platitudes, I don’t see that he answers the question in the book, either. I’ve cited this paper before, but I think its critique of Brennan on that issue is on target:

Yes, the argument he cites at the beginning is invalid, so if that’s the argument political theorists are giving for proceduralism, fine–that’s a dog that won’t hunt. But you don’t need to go as far as thinking that disagreement entails lack of external standards to be sympathetic to proceduralism; you just need to think that reasonable disagreement is a problem that needs separate (procedural) treatment from the first-order problem you’re trying to settle.

Brennan:

Now let’s turn to the idea that disagreement means there are no external standards. On its face, this is a bizarre, half-assed form of moral relativism.

I say half-assed because the person defending this position says that there are objective moral standards about how to resolve disagreements, but no standards about what we should decide when we disagree. You get a weird deontological defense of democratic procedure combined with a bizarre moral voluntarism about the substance of our decisions. (Does it make it better if they say, “Oh, no, I’m just talking about the legitimacy of the decision”? “Sure, X is objectively just, but we can’t do X because the people haven’t voted to do X. Or we can legitimately violate X because the people said so.”)

Well, yeah, taken exactly that way, it’s a half-assed idea. But aren’t there contexts where a related idea has plausibility?

What if the person defending the view says that there are objective moral standards about how to resolve disagreements, and some moral standards about what we should decide when we disagree (call these first-order standards), but that the first-order standards are somewhat indeterminate when it comes to fine-grained decisions. And the various contending parties disagreement fundamentally about what to do at the fine-grained level.

So they’re left with this expedient: they adopt procedures for resolving their disagreements; resolve to be guided as best they can by first-order moral standards; recognize that those first-order standards have various different implications in particular cases; but hope that adherence to the procedures will lead to an orderly deliberation between the contending parties about how to resolve the issue between them.

What I have in mind is less democratic elections than diplomacy. Imagine that you’re trying to resolve the Israel/Palestine dispute. You’re not a moral skeptic; you’re a moral realist about justice and rights. But you recognize that a commitment to a realist conception of justice and rights isn’t going to be enough to settle the differences in question. You need something more specific. Suppose you have a basic sense of what justice requires, and that it’s somewhat more adverse to one side in the dispute than the other. Unless you somehow conceive of yourself as a Hobbesian Leviathan with the power to impose a solution on everyone, you need their buy-in. You need to devise a set of procedures acceptable to both parties that elicit their buy-in to something as close to the optimally just resolution as you can get people to agree to. Whether this can be applied back to other contexts, I don’t know, but it doesn’t strike me as half-assed.

You don’t need to be a moral skeptic or voluntarist to be sympathetic to proceduralism. Nor do you have to have a full account of how the procedures instrumentally produce the best outcomes. You just have to think that there are two different issues in play–optimal outcomes and disagreement about how to proceed–that need separate normative treatment.

Brennan again:

The more plausible view is that people have at least a core of rights and duties which are not mere artifacts of political fiat. Democracy–if it’s justified–is at least partly justified for its tendency to produce certain desirable outcomes, such as stability, efficiency, prosperity, and a tendency to recognize and respect rights.

Right, but commitment to “at least a core of rights and duties which are not mere artifacts of political fiat” is not a procedure for solving any actual problem in political life, especially not one where disagreement about the problem is a separate problem. If it were, you could walk around with the Bill of Rights in your hand, solving political problems by reading the text at the problem. You can’t even run a faculty meeting like that. If democracy “is at least partly justified for its tendency to produce certain desirable outcomes,” why can’t it be at least partly justified by fair procedures that bear no clear, demonstrable, iron-clad instrumental relation to those desirable outcomes?

I don’t even say any of this as someone particularly convinced by or sympathetic to proceduralism. It just annoys me that he doesn’t seem interested in dealing with plausible or worthwhile versions of the argument he’s attacking, and his responses to them leave gaping loopholes for a mixed sort of proceduralism which is incompatible with the pure instrumentalism he’s supposed to be defending.

Just read the Brennan BHL post. I guess his target is just that half-assed argument but it is annoying that he is not also aiming to get at whatever truth their might be to proceduralism. I fully agree with all of the points you make (and of course am sympathetic to the defense of democracy having an important procedural-fairness component).

I now regret not having kept up with this discussion, because I don’t have the time or energy to read it all with the care it deserves. On this particular bit from Brennan, though, I’m sympathetic to the impatience you two have with his refusal to address more plausible forms of the view he’s opposing, and I am especially sympathetic to Irfan’s sketch of reasons for adopting fair procedures in the face of disagreement. I might be somewhat more sympathetic to Brennan here than you two are, though, because the view he is critiquing is a real view and it’s quite distinct from the sort of view Irfan sketches. The view Brennan is critiquing at least bears a family resemblance to Rawlsian and similar forms of deontological liberalism (though it should be distinguished from political liberalism in the Rawlsian sense as such, since there are thinkers who at least try to embrace political liberalism in that sense while endorsing fundamentally non-procedural conceptions of justice and the goals of policy, e.g., the Nussbaum of Creating Capabilities or Frontiers of Justice). The thought really is something like: because people reasonably disagree, it is illegitimate to appeal to any of the principles under dispute, so we need to adopt a neutral procedure that all parties can endorse as fair, and this is a fundamental point about justice, at least in pluralistic societies. As I’ve harped on about before, recourse to mutually acceptable procedures can be and often is the right way to deal with disagreement, but to acknowledge that point is a far cry from thinking that justice fundamentally demands such procedures and precludes appeal to any more substantive notions. Irfan’s sketch illustrates that point pretty clearly. But Irfan’s sketch is not a sketch of the sort of view Brennan is critiquing, precisely because Irfan is not trying to give us a fundamental principle of justice, but at most a very generalizable policy for practical dispute resolution. The views are different enough that arguments against them would need to be pretty different if someone were inclined to reject both of them. So it seems unreasonable to object that Brennan does not argue effectively against both of them at the same time.

Of course, if Brennan himself thinks that he’s arguing against both of them at the same time, then he’ll have to do better. But I don’t read his post as doing that.

That said, while I am no longer surprised by how bad academic arguments can be, and while I share Brennan’s assessment of the relative argumentative rigor of political theory and political philosophy as disciplines in Anglophone academia, it’s hard to believe that he’s really critiquing the most plausible version of an argument for democracy from the prevalence of intractable disagreement. As he notes, he’s not even critiquing any argument from the prevalence of disagreement to the unavailability of an external standards, because the “therefore” in his 2 is just a non-sequitur (and by design). Surely one could say more than that — i.e., something — to render that inference plausible. I can’t envision any argument that would convince me on the level of principles as opposed to pragmatic dispute management, but Stephen’s bit about Hampshire points to some ideas that could at least give us an argument to think about.

I’m also left wondering: is there really any significant support in contemporary political theory or philosophy for democracy unconstrained by any sort of rights not directly subject to democratic deliberation? I concede that democracy as such is consistent with pure majoritarianism, and I’m happy to insist that democracy ought to be constrained by rights and to concede that this constraint makes a system less democratic than a purely majoritarian one. But does that sort of view really have many prominent defenders? If not, then Brennan’s argument in the post seems even further from hitting any actual targets.

Yes, if you take Brennan’s post to be aiming at no more and no less than the stated target, he’s right. (You see how magnanimous I can sometimes be.)

Maybe it’s too demanding to expect him to take on two targets at once in a blog post, but having read Against Democracy, I think I’d also say that while he does a good job sinking purely proceduralist views, neither there nor here does he deal with the kind of view I sketched above. When you factor in the enormous amount of handwaving he does in all of his published work, it’s hard to resist the conclusion that the tone he takes at BHL is objectionable, not just because the tone is objectionable per se, but because it conveys a real misimpression about what he’s actually succeeded at demonstrating in his published work. The published work is very careful, qualified, and professional, but (for that reason) full of holes, both admitted and unadmitted. The blog stuff is all bluster. Put the two together, and you find yourself shaking your head.

I used to think that I was the only person to have this reaction to Brennan’s work, and that it was a function of my own biases and temperament, but the more conversations I have with people, the more often it comes up. Maybe lots of people share my biases and temperament, or maybe we’re all seeing the same thing.

In fairness to Brennan, he is (in the BHL post) discussing political theory (as practiced in Depts of Politics) rather than political philosophy (as practiced in Depts of Philosophy), where you are more apt to find the sort of view he is defending. And there is one set of contexts in which both political theorists and philosophers will defend deliberative democracy unconstrained by rights–contexts where the rights at stake are property rights up for infringement by taxation or regulation. If you reject the very legitimacy of private property rights, or demote them to a very marginal normative status, you’ll tend to think that nothing of significance is at stake as far as “they” are concerned. In that case, direct democratic deliberation will seem like a splendid way to carve up “our stuff.” Once “we” decide it has to be divided up or regulated a certain way, what basis could anyone have for complaint?

I find such views objectionable myself, but it seems to me that if you really want to respond to them, the thing to do is to defend a robustly substantive conception of property rights. One of the problems I have with the recent turn in libertarian scholarship is that the major players and major works are focusing attention elsewhere than on the justification of property rights–testimony, perhaps, to the sheer difficulty of that task.

To put the point very coarsely, it’s as though the profession came to the conclusion that if we focused on the most philosophically fundamental issues, we’d have to reduce the pace at which we published, in which case, professionally, many of us would perish. As a maxim for keeping one’s job, it’s probably true, but it’s led to a lot of scholarship that strikes me as doing an end-run around what I regard as the fundamental issues.

Of course there is considerable support for making property rights subject to democratic deliberation. But so far as I know, there’s not support for making all rights subject to democratic deliberation. I suppose one way to articulate something that you, Brennan, and I would all agree about would be: pure democracy unconstrained by rights in any sphere would be unacceptable; but this means that democratic deliberation must be constrained by some substantive, non-procedural considerations of justice; so we need to argue about substantive, non-procedural considerations of justice rather than responding to de facto disagreement by simply identifying some mutually acceptable procedures, since, after all, one of the points of disagreement is about whether a procedure that leaves certain rights on the table would itself be a fair or mutually acceptable procedure.

In reading through the discussion here, I’ve several times had the thought that the possibility of a fair procedure that doesn’t produce results that are antecedently fair or just itself depends on the range of possible outcomes excluding those that are substantively unjust: there isn’t some “fair owner” of the turkey sandwich prior to the coin flip or whatever, but if there were, then the coin flip would be a manifestly unfair procedure. If so, then the only way a fundamentally procedural conception of justice can get off the ground is if there are no substantively just or unjust outcomes antecedent to the procedure. I’m with Brennan in finding that thought so implausible as to be hardly worth taking seriously.

I think I’m just more sympathetic to Brennan than either of you two are. But then, you guys are the ones who have actually read the book, so I should withhold my judgment. Tentatively, then, I’ll say that I am fairly sympathetic to Brennan’s critiques of democracy, and not just of certain theories of democracy, though I am not convinced that epistocracy is a viable alternative. But now I’m getting myself dangerously close to having to read it.

I don’t disagree with any of that, and I’m not sure Michael would. This isn’t the part of Brennan’s account–his rejection of purely proceduralist defenses of democracy–that I disagree with. Actually, I’m happy to endorse a form of instrumentalism about democracy, just not his form.

My point is that one could still have a mixed view that appeals to substantive values and principles, where those principles constrain a range of permissible outcomes, but allow procedures to govern how to choose the options within the set. The set is constrained by substantive considerations of justice, but the outcome itself is not predictable in advance of enacting the procedure. Market exchange is one paradigm of this sort of thing: if I want to sell my guitar to my friend Mike, the act of negotiating the sale and selling it is constrained in a variety of ways: I can’t use force or fraud, and neither can he. But the exact sale price is unknown until we settle on it, as are the zigs and zags of the negotiation. The question is whether there are political exemplifications of this general pattern.

Actually, the transaction I just mentioned happened a few months ago, when I was moving from Bloomfield to Whitehouse Station. And it had a paradoxical and unpredictable result: I offered my friend Mike my guitar for $100, to which he responded, “Don’t be an idiot, it’s worth more than that!” To which I responded, “I’ll knock $100 off if you take my amp, too,” to which he said, “No, I’ll take the guitar for a reasonable price that I’ll figure out after I look it up, but I don’t have any cash on me right now, and don’t feel like looking it up, either. And I don’t need an amp.” We then settled on $300 for the guitar, which he took right then and there but paid me for months later; he took the amp, too, and took it for free. We both found the outcome fair, but who could have predicted it?

“I think I’m just more sympathetic to Brennan than either of you two are.” I should verbally upbraid you for saying that, but will refrain only because any abuse I visited on you would prove Brennan’s thesis that politics turns us into “civic enemies.” And I wouldn’t want to do that. Clearly, I am an instrumentalist about some things.

Right. Of course, many critics of markets challenge them on the grounds that they yield substantively unjust outcomes. I would count myself as one of them (the critics, not the unjust outcomes, though I suppose I might be both), with the caveat that I tend to think that markets are usually pretty good for lots of things and that most of the problems seem to me better addressed by restrictions than by eliminating markets altogether. Then again, I’m not a fan of markets in, say, bodily organs or sex. Fittingly enough, that puts me at odds with Brennan, who defends markets for pretty much everything. Brennan’s sort of objection to procedural democracy seems to depend on some of the same sorts of concerns that I (and others who are more critical of markets than I am) have about markets. I haven’t read Markets Without Limits, so I don’t know, but perhaps Brennan thinks that unregulated markets typically tend to yield substantively just outcomes, or at least to avoid substantively unjust outcomes; perhaps he thinks there is no antecedently just or unjust outcome in market transactions, whereas law and policy can bring about unjust outcomes (sounds plausible enough).

In any case, I think I’m suitably persuaded that he should be doing a better job. Whether that’s because he’s got his sights set too low or because he’s overstating his case is less relevant. In the book, if not in the post, he’s not simply trying to undermine one sort of argument for one sort of view of democracy, and so if he’s ignoring the sorts of cases you have in mind, that’s a problem.

True confession, though: I am probably an epistocrat at heart, just a really, really pessimistic one. Then again, I never feel like I’ve arrived at stable views on these sorts of things. That helps me to avoid having many civic enemies, I think. Or maybe that’s just because I’m too boring to be anybody’s enemy.

I think it’s worth cutting through the hype and PR surrounding Brennan’s book, and bearing in mind what he actually ends up saying.

1. The (American) electorate is incompetent to vote.
2. Voting rights should be confined to the competent, both morally speaking as well as legally, assuming we can figure out how to do the latter, which I, Brennan, have not.
3. There are lots of ways of doing (2) but I’m not sure which one, if any, would work. A written test seems as good as any, so let’s experiment with one in a few places. The outcome of an experiment is unknown ex ante, so this may not work, or may make things worse. By the way, no, I am not going to tell you what’s on the exam.
4. Certain demographic groups–black females–would be disenfranchised by my proposal, but that’s no objection. They are obviously incompetent to vote. To make them competent, we need to re-educate them, which, dammit, is what we should do.
5. Though my thesis is supposed to generalize to democracy as such, I’m primarily relying on data involving national elections in the United States. Because all the world is America.

Apart from the smart-ass comment in the very last line, that is a fully accurate summary of Brennan’s thesis. It may sound uncharitable, but that’s a matter of tone, not of content. The five claims above capture the essential view in a fully accurate way.

It’s worth noting that contrary to popular belief, claim (1) is not argued for. What he shows is that voters are deeply ignorant about a variety of things, and are liable to a variety of biases. But he gives no general account of what counts as competence such that voters’ ignorance of that counts as incompetence. So contrary to first appearances, he does not demonstrate that voters are generally incompetent at voting. He demonstrates that they’re generally ignorant about a lot of things, some of which may be relevant to voting. Or may not be. He also treats liability to bias as so counterfactually stable as to be essentially a fixed constraint on the capacities of the electorate.

Since he gives no account of competence, it is not clear what (2) really means.

Since he doesn’t tell us whether a written test is the way to go, or what is on it, it is not clear what (3) amounts to. He admits that moral competence is relevant to voting, but makes no effort to explain how you’d test for it, or why a merely written test would (given the cost and the risks) be sufficient to weed out the incompetent. Though he claims that moral competence is irrelevant to large scale elections, this strikes me as a mis-inference from the studies he relies on to make the claim, and it doesn’t apply to local elections, a fact that goes undiscussed in the book. What if most politics ought to be local?

Though he excoriates “ideal theorizing,” he has no problem indulging in handwaving flights of fancy like (4).

If we regard his claims as generalizable to other places as per (5), they entail that the already-disadvantaged should be further disenfranchised everywhere where universal suffrage has come to prevail.

Incidentally, since we already impose written civics tests on naturalized citizens, wouldn’t it be obvious to ask whether naturalized citizens tend to vote more competently than native born citizens? I think so, but the issue is nowhere discussed.

If we’re going to impose competence tests on people doing consequential things, wouldn’t it be more obvious to impose competence tests on parents? A single vote confers a 1/n share of power in a political system, where n denotes the size of the voting pool. Parenting one child is far, far more consequential than that. If voters should be competent, shouldn’t parents? If voting rights can be licensed, why not parenting? If incompetent voters pollute the polls, what do incompetent parents do? Obviously, Brennan has no obligation to address topics that don’t interest him. But he does a lot of intuition pumping about competence by adducing examples where it’s uncontroversially required, the criteria for competence clear, competence has to be tested, and is relatively straightforward to test for. Problem: even if we concede that voting requires competence, the criteria for competence aren’t clear, nor is it clear how to test for them. In that respect, voting is closer to parenting than it is to, say, driving, one of Brennan’s favorite examples. The fact remains that the reader is left with the question: if competence is the issue Brennan makes of it, why would anyone focus on voting as the instance of incompetence that so desperately needs remediation?

What is odd about Brennan’s view is that his “epistocracy” consists of precisely one policy proposal: limit universal suffrage. That’s it. But it’s not even clear how this one proposal is supposed to go, except for the fact that it will (somehow) lead to lots of disenfranchisement. If you put this issue aside, most of us are to some extent epistocrats. We believe in judicial review. We believe democratic deliberation should be constrained by moral and constitutional considerations. We don’t think that every policy issue should be decided by referendum. Etc. But if someone is this fixated on one highly controversial policy proposal with admittedly problematic consequences, you would expect them to close the gaps I’ve just indicated above. The biggest problem with Brennan is that if you listen to him in an interview, you get the impression that everything’s wrapped up and done. But when you read him, you realize that almost none of it is. To be this cavalier about claims of “incompetence” and proposals for disenfranchisement strikes me as amazing. Just try to imagine walking into your local NAACP chapter and saying,

Most of you-all are too incompetent to vote. You’d never be able to pass a test I could write and pass. (Though I’m sure there are exceptions.) So you should be disenfranchised–yes, again. But no worries: in large scale elections, people vote for what they take to be the national interest, so things probably won’t get too bad for you. Who knows? Maybe having to defer to the votes of white people will do you some good, given their competence at exams of the kind I (kinda) have in mind? As for local elections, I don’t know about that. It’s too insignificant to show up in the data. Anyway, one of these days, we’ll fix our educational system and make you competent voters. Meanwhile, don’t pollute the polls with your presence.

Somehow, I doubt you’re an epistocrat of quite that kind. But it is not uncharitable to say that he is.

I happen to be prepping for class next week, where I assigned Brennan’s “The Right to a Competent Electorate,” Philosophical Quarterly 61:245 (Oct 2011), pp. 700-724. I had forgotten that the paper has a more sustained and detailed discussion of Estlund’s proceduralism than the book, and has a less triumphalist attitude toward epistocracy. I’m a little puzzled at what it is that changed between 2011 and 2016 to convince him of the virtues of epistocracy, but clearly, something did.

I had also forgotten that in this paper, Brennan makes explicit what is left implicit in The Ethics of Voting, and is omitted entirely from Against Democracy: just as “we” have a right to a competent electorate, a competent electorate has a right to be ruled by competent officeholders. But competence is a trait of character. So a competent electorate has the right not just passively to expect but actively to vote for candidates on the basis of their possession of a trait of character, competence, i.e., to engage in character-based voting.

Brennan might say that the view he takes in the “Competent Electorate” paper and in Ethics of Voting are consistent: the first endorses competence as a politically relevant trait of character in officeholders, and the second says that character-based voting is justified if it is a proxy for good policy. But I think there’s a problem of consistency here.

I expect that Brennan would say that competence is almost by definition a proxy for good policy/governance, especially if it’s understood as the sort of competence that is relevant to policy/governance. I agree. I’d just point out that people may more easily be able to grasp that a person is competent than to predict the expected consequences of the policies they can be expected to pass. If so, competence is a proxy for governance in a way that is not reducible to predictions about the expected consequences of an officeholder’s expected policies. Unless judgments of competence were reducible to the sorts of question we find on Brennan’s voter qualification exams, we have reason to question the relevance of those exams, which are largely limited to issues having to do with policy consequences (or at any rate don’t test judgments of competence). A person might fail a Brennanite exam but still be able to distinguish competence from incompetence.

In that case, he faces a problem: he admits that competence is politically relevant, indeed, that we have a right to it, but claims that we’re only allowed to vote for character (including competence) if it’s a proxy for policy or governance. But not all genuine knowledge of political competence is reducible to testable knowledge of policy, in which case epistocracy demands something (competence) that it can’t test for. But testing is supposed to be its forte.

We also have reason in the same case to question Brennan’s claim that character-based voting is “largely wrongful.” If competence is so obviously connected to good governance (and it is), voting for competence can’t be “largely wrongful.” In fact, competent voters should have the competence to pick out competent candidates. As far as I’ve read, he doesn’t say anything about any of this, but I think he has to.

I’m in full agreement with what you say here. Voting competence and officeholder competence are entirely different things – and, plausibly, the easiest and best way to be a competent voter is to reliably detect the appropriate good will and policy competence of potential officeholders. That might not require much detailed policy knowledge at all. Especially if that knowledge is of the “likely consequences of voting for this candidate or enacting that policy” sort. So, yeah, Brennanite voter qualification tests would likely miss at least this arguably central voter competence.

He actually deals with this issue (sort of) toward the end of chapter 8 of Against Democracy, which I hadn’t read when I wrote my Nov. 24 comment. His claim is essentially that people can articulate the standards for competence in the abstract, but can’t apply it accurately in concrete cases. So most character-based voting turns out in fact to be wrongful. If you treat that fact as a counter-factually stable constraint on the future, you reach the conclusion that if they’re incompetent now, we can expect that they generally will be in the future.

That said, nothing he says deals with the irrelevance of voter qualification exams to the minimal moral qualifications that a voter ought (by Brennan’s own account) to have. If the moral qualifications matter as much as the epistemic ones, not testing for them still subjects us to the “undue risk” that the epistemic voter qualification tests were designed to weed out. So the logic of Brennan’s argument (his endorsement of the Competence Principle, pp. 141-42) demands that we either devise a moral test to weed out the morally incompetent, or abandon the whole effort of devising tests as misguided. I take that to be an implication of Piero Moraro’s argument in “Against Epistocracy.”

Yes. Although you need some of the weak bits of Moraro’s argument (to the effect that sorting out informational incompetence raises the risk of moral incompetence) to fly in order to get this conclusion. For maybe we are only in a position to improve the informational bits of the incompetence (and we should do this). Or maybe, in addition to the informational competence test, if we had the resources, we should hook folks up to a brainwave machine and run relevant moral (or partisan-baiting) scenarios by them while monitoring them – thus determining if their relevant motivations/values are good enough.

I actually think the issue turns on Brennan’s claim that in large elections, people tend to vote for the common good, so that wrongful voting tends to be a purely cognitive or epistemic matter that can be tested or weeded out by a written test. Since he’s mostly dealing with national elections (most of the data that exist are for national-level elections), he leaves the matter there. Moraro then points out that the claim doesn’t hold for smaller scale elections, so that moral tests become more relevant as the pool of voters shrinks (or as “pivot probability” increases, as the political scientists say). I guess Brennan would say that Moraro’s claim only holds for a small minority of elections, if that.

The relevant paper here is Fedderson, Gailmard, and Sandroni, “Moral Bias Toward Unselfishness in Large Elections: Theory and Experimental Evidence,” American Political Science Review 103 (2009), 175-92. (The title is mis-cited in Against Democracy.) I don’t think the paper can properly be used as Brennan uses it, and think that Moraro has conceded too much to Brennan’s misuse of it. But that’s a long story which I’ll have to discuss another time. One interesting implication, however, is that the findings don’t hold for small-scale local elections. In New Jersey, there are towns with populations in the double digits. The findings certainly wouldn’t apply there.

Stuart Hampshire argued that the prescription “hear the other side” is the necessary condition, historically selected, for fairness of a public procedure for any society not dominated by force or threat of force by one of the society’s conflicting factions. “To be killed in duel, like Alexander Pushkin . . . is different, and has always been felt to be different, from just being killed in a pub brawl like Christopher Marlowe.” He applies the same two alternatives to conflicts over whether the prescription “hear the other side” is the only alternative to plain force, practically speaking.

I’m doubtful that the anonymity requirement, such as in Rawls, is so widely shared across history of culture than “hear the other side.” But what, all the same, is the conceptual and practical standing of the one to the other? Can one do as well as the other in explicating the fairness of democratic procedure and does one as well as the other put reins on majority rule within the democratic fairness?

Thanks, Stephen. I like this idea and I have to think some more about it. One thing that sticks out to me is that hearing the other side does not directly speak to how collective action or decision-making needs to go in order to be fair (in the context of a democratic state or any other such context). Hearing the other side (and considering the other side in a certain way, I would assume) does not do much to narrow down a random list of procedures for collective decision-making. But it does seem like a component of (or precondition for) fair procedure in collective decision-making. But I would have to read Hampshire to come to a less tentative conclusion.

I, too, am skeptical that anonymity in decision-procedure for collective action explains which procedures are fair. Intuitively, it is equal consideration (whether anonymous or not) that does the work in explaining fairness in collective decision-making procedure. I doubt that we always need anonymity to do “the work of fairness” in this sort of context.

I highly recommend reading this critique of Brennan by Rob Talisse, “The Trouble with Hooligans,” in Inquiry (July 2018). It makes some of the same points I made above, but more clearly and economically. Scroll down to III, “Selected Articles.”